Faithandthelaw's Blog

The law as it relates to Christians and their free exercise of religion

Can FDA and FTC Control What a Christian Ministry Tells Supporters About Vitamins?

Posted by faithandthelaw on May 21, 2010

By Bob Unruh
© 2010 WorldNetDaily

A  court document in a long-running dispute over efforts by the Food and Drug Administration and the Federal Trade Commission to control what a Christian ministry can tell supporters about vitamins suggests that a decision over its claim the government has created an undue burden on religious freedom is above the federal agency’s pay grade.

“Respondent [the government agencies] characterizes Petitioners’ Motion [for evidentiary hearing] as an ordinary ‘request to reopen the evidentiary record in this proceeding,’ governed by the rules set forth … [by] the FTC Act,” the motion filed by attorneys on behalf of the Daniel Chapter One ministry told the District of Columbia Court of Appeals.

 “This characterization is clearly wrong. … Petitioners’ Motion for an Evidentiary Hearing is predicated exclusively upon 42 U.S.C. section 2000bb-1(c) of the Religious Freedom Restoration Act… Petitioners are not seeking to reopen the administrative proceeding to ‘adduce [additional] evidence before the Commission.’ … Rather, they are seeking to introduce evidence directly into this court in support of their ‘claim or defense’ that [the agencies] would ‘substantially burden’ their ‘exercise of religion’ in violation of RFRA.”

The arguments pointedly explained that “such a motion is not governed by … the FTC Act, but by RFRA,” the motion states. “The FTC has no special expertise respecting whether … its order in this case ‘substantially burden [petitioners] exercise of religion.”

WND has reported on the dispute in the past, including when defenders of the small Christian nutrition ministry called Daniel Chapter One worried that the company was being subjected to a “Star Chamber.”

At that time, several months ago, an investigator working for the Federal Trade Commission looked into Daniel Chapter One, a complaint counsel for the FTC worked up a case, FTC commissioners authorized the filing of a complaint, FTC lawyers prosecuted the complaint, the head of the FTC office of administrative judges decided in favor of the FTC and four sitting FTC commissioners affirmed the FTC judge’s opinion that the FTC charges had been proved.

The dispute in the specific case stems from how the federal government demands studies of nutritional products such as vitamins be done before the products are advertised to consumers. But the larger picture, according to advocates for Daniel Chapter One, is just exactly how much freedom still remains for Americans.

“In the Federalist Papers James Madison wrote that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointive, or elective, may justly be pronounced the very definition of tyranny.”

That’s from attorneys for Daniel Chapter One who responded to a series of written questions submitted by WND at that time.

“Even before Madison, the English Parliament – in an act abolishing the Star Chamber – established in England in 1648 a system of justice administered by the courts instead of by the administrative agencies of the executive branch of the government,” they said.

That, the attorneys said, is a key part of the concept of due process of law.

But ignoring Madison’s warning, Congress in 1914 created the FTC and delegated to it “legislative, executive and judicial” power.

The statement from Herb Titus, a key constitutional expert working on the Daniel Chapter One case, said in this case, the FTC simply said that someone marketing dietary supplements must substantiate any health-related claim with “scientific evidence” – forcing the company to affirmatively prove its statements instead of defending any statements suspected of being incorrect.

Then the FTC “used its law-enforcing powers to decide, in its sole discretion, whether the scientific evidence relied upon by the marketer of such supplements is ‘relevant,’ ‘objective,’ and ‘accurate,'” he said.

The company is seeking a determination from the judiciary on its defense because to date, all of the allegations, rulings and orders have been done by the federal bureaucracy.

Its motion for a hearing alleged that the FTC order doesn’t just censor Daniel Chapter One’s descriptions of its vitamins but requires a pro-active adoption as its own the government position that only government approved tests for supplements and nutrients are valid.

That is a violation of RFRA, the motion states.

“With respect to paragraphs II and III, the order would compel petitioners to ‘rely’ on ‘scientific evidence,’ as defined and dictated by the FTC, to support any representations that they would make about the health benefits of their dietary supplements, rather than to rely exclusively upon their faith in God’s revelation, as defined and dictated by their Christian faith,” the motion said.

A requirement that Daniel Chapter One convey “positive information about conventional medical treatments … would place them in direct conflict with God’s call upon them as a ‘watchman ministry’ to warn people about the dangers of conventional biomedicine and to inform people about holistic healing alternatives,” the court documents contend.

Federal law now states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability unless the government … demonstrates that application of the burden to the person .. is in furtherance of a compelling government interest [and] is the least restrictive means of furthering that compelling government interest,” the court brief argues.

FTC attorneys argued their own “judicial” process within the agency already had made those decisions.

In a brief filed by agency attorneys Willard Tom and John Daly, they argued that Daniel Chapter One “failed to provide an adequate explanation as to why it had not asserted its RFRA defense in a timely manner.”

Further, the attorneys said, the commission itself “considered and rejected DCO’s RFRA defense.”

But Daniel Chapter One’s attorneys suggested administration precedents simply don’t apply to an RFRA claim. Further, they argue, the U.S. Supreme Court in the “O Centro” case concluded that a “judicial proceeding” cited in the RFRA is a “court” proceeding before a judge, “not an administrative adjudicatory hearing before an administrative law judge.”

“Indeed, the Supreme Court understood what respondent apparently does not – that RFRA’s very purpose would be defeated if an administrative agency was authorized to decide, as the FTC Commission did in this case, that its own order did not ‘substantially burden’ petitioners’ ‘exercise of religion’…” they argued.

The DCO website states the organization is complying with the FTC order “as best as possible” until its appeal is processed.

“We are actively pursuing appeal in an unbiased federal court. Our case is strong, and upon success, will be a landmark victory for freedom,” the website said.

At issue is the ministry’s radio program and an accompanying website to recommend natural remedies to health problems.

Jim Feijo, who with his wife set up the Rhode Island-based service that operates as a Christian ministry, said the dispute arose after officials in the Canadian health service contacted him and ordered him to shut down his operations. He declined to cooperate and Canadian officials apparently contacted the FTC and FDA to insist on their demands.

The products the program offered are natural substances and are alternatives to chemical and drug medications and information about the treatments comes from those who experienced different levels of help.

The case began in September 2008 when the FTC launched action against Daniel Chapter One and 10 others, alleging “deceptive practices.”

Feijo earlier told WND if the government is successful in its current maneuver, there would be no limit to the dangers ordinary people could face. Grandmother’s cold remedy could be called a medical treatment and regulated and taxed, and anyone administering “treatments” such as water for dehydration could be determined to be practicing medicine, he suggested.

Courtesy of http://www.wnd.com/index.php?fa=PAGE.view&pageId=156041

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